HKSAR v. Naseer Umair

CACC 66/2023, [2024] HKCA 149

On Appeal From [2023] HKDC 103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 66 OF 2023

(ON APPEAL FROM DCCC NO 634 OF 2021)

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R E A S O N S    F O R    J U D G M E N T

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.The applicant faced a charge sheet in the District Court containing one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1); one charge of driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (Charge 2); and one charge of using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

2.He pleaded guilty to Charges 2 and 3. In respect of Charge 1, although the applicant pleaded guilty to simple possession of the drugs concerned, he was nevertheless convicted by Deputy Judge Tang (“the judge”) of the full charge of trafficking. For that offence he was sentenced to 5 years and 10 months’ (or 70 months’) imprisonment, less 42 days he had spent in administrative detention. His overall sentence, including the penalties in respect of Charges 2 and 3 was 72 months’ imprisonment, less the administrative detention period.

3.Having filed his Notice of Application for Leave to Appeal (Form XI) on 29 March 2022, the applicant sought leave by counsel to appeal against conviction in respect of Charge 1 only.

4.On 30 January 2024, after hearing from counsel, I refused leave to appeal against conviction and said I would hand down the reasons for my decision in due course. These are my reasons.

Charge 1

5.The particulars of Charge 1 averred that the applicant, on 22 March 2021, near the junction of Reclamation Street and Soy Street in Mongkok, Kowloon unlawfully trafficked in a dangerous drug, namely 6.12 grammes of a crystalline solid containing 6.09 grammes of methamphetamine hydrochloride.

The prosecution case

6.A substantial part of the evidence was agreed by way of Admitted Facts, pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221, as a result of which the prosecution only called one prosecution witness, PC 17767 (“PW1”), who had intercepted and arrested the applicant at the scene.

7.At about 3:58 am on 22 March 2021, whilst on patrol inside a police vehicle, PW1 noticed the applicant alighting from a private car parked near the location specified in the particulars of the charge. Noticing that the driver’s window was not closed, he intercepted the applicant and asked him why he had not shut the car window. Without responding, the applicant then got back into the car and closed the window. At PW1’s request, the applicant alighted again from the vehicle and stood beside it, with his right hand in the front right pocket of his trousers. When asked to take his hand out of his pocket, the applicant threw down onto the ground a bunch of keys, two HK$5 coins and a re-sealable plastic bag of white crystalline substance, later confirmed to be 3.17 grammes of methamphetamine hydrochloride (commonly known as “Ice”) (Exhibit P1).

8.PW1 then arrested the applicant and, although he tried to flee, he was subdued and handcuffed by PW1 with the assistance of other police officers nearby. Upon a search of the vehicle, two further re-sealable plastic bags were found in the well between the two front seats, and later found to contain a total of 2.92 grammes of “Ice” (Exhibit P2). The applicant was also in possession of two mobile telephones and HK$1,142.20 in cash. The estimated retail value of all of the dangerous drugs seized, as at March 2021, was HK$3,464.

9.A urine test conducted on the applicant on 24 March 2021, when remanded at Lai Chi Kok Reception Centre, subsequently tested positive for amphetamines, cannabinoids and cocaine.

The defence case

10.The applicant elected to testify but did not call any defence witnesses. He did not dispute that he was in possession of the dangerous drugs concerned but maintained that they were for his own consumption.

11.The applicant had come to Hong Kong in 2009 and was a Form 8 recognizance holder. In 2011, he married a Hong Kong resident, obtained a Hong Kong Identity Card and took up various jobs. In 2014, he separated from his wife, without going through formal divorce proceedings. He then started consuming cannabis and was convicted of possession of dangerous drugs. He went back to Pakistan at the end of 2014. In 2015, he returned to Hong Kong and began consuming “Ice”, whereupon he was convicted of possessing dangerous drugs again. Following a divorce in 2016, his visa for remaining in Hong Kong expired and he became a Form 8 recognizance holder again. In 2017, he resumed taking dangerous drugs. Although the applicant apparently remarried his ex-wife in 2020, his Form 8 status remained, since he had not applied for the relevant visa[1]. In the same year, the applicant learned that his wife had applied for a divorce[2].

12.In respect of his financial situation in Hong Kong, the applicant said that although he was from a well-off family in Pakistan[3], he was living in humble circumstances in Hong Kong[4] and was not receiving social security[5]. In January 2017, the applicant received a total of HK$512,980 as compensation for a work injury suffered in 2013. Since he was a Form 8 recognizance holder at the time, he was not able to deposit the money in the bank and asked his friend, Sukhwinder Singh (“Singh”) to hold it for him. However, the applicant did not keep any record of such deposit, nor did he record how much Singh still owed him[6].

13.At about 3 am on the date of the offence, the applicant saw a Chinese friend, whose name he could not recall, in a McDonald’s restaurant, as a result of which he borrowed the friend’s vehicle in order to drive to Mongkok to purchase the “Ice” particularised, which was intended to be for his own consumption[7]. He said that when he alighted from the vehicle, he put Exhibit P1, his Identity documents, his keys and some coins in his back right trousers pocket. Exhibit P1, the keys and the coins were dropped rather than being thrown onto the floor at PW1’s request[8].

14.In respect of his drug consumption rate, the applicant said that the 6 grammes of “Ice” seized from him would last him for between 10 and 15 days[9].

The reasons for verdict

15.The judge did not accept the applicant’s evidence. He reasoned, first, that it would have been impossible for the applicant to see his friend at a McDonald’s restaurant on 22 March 2021, due to the operation of GN(E) 166 of 2021 made under the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation, Cap 599F (“the Regulation”), whereby the restaurant was required to be closed between 10 pm and 4:59 am the following day[10]. Secondly, the applicant was unemployed and was a Form 8 recognizance holder at the time. No one, in such circumstances, would have lent him a car, which was obviously something of value[11]. Thirdly, while the amount of compensation the applicant received for his industrial injury was a large sum, he seemed to have exhibited a rather casual attitude towards it[12]. Fourthly, if the applicant were from a wealthy family in Pakistan who could support him, as he maintained, he would have no reason to remain living in such humble circumstances in Hong Kong[13]. Finally, even accepting what the applicant said about his marital history throughout the years as true, which the judge did not, he found there would be no reason for the applicant to continue staying in Hong Kong, after his wife had divorced him[14].

16.Having considered PW1’s evidence and the attack on his credibility by defence counsel, including the inconsistencies in his evidence in court, and the contradictions between his evidence and his witness statement, the judge nevertheless found PW1 to be a credible and reliable witness[15].

17.The judge drew an inference from all the circumstances that the “Ice” in the possession of the applicant was for the purpose of trafficking, and that none of it was for the applicant’s own consumption[16]:

“I understand the Defendant has two convictions for possession of dangerous drugs and after he was arrested, his urine test was positive for dangerous drugs. However, the Defendant is a Form 8 holder and is not under the assistance of ISSI, and I do not believe he had any money that was kept by his friend, Mr Singh; which mean he does not have any financial resources. At the material time, he was driving a valuable car with two mobile phones, appeared in the material location at small hours without proper reason. He has no financial means that I do not believe anyone would lend him such a valuable car under normal circumstances and there is no proper reason for him to use two mobile phones. I draw the only, reasonable, and irresistible inference that at the material date, time and location he was trafficking the dangerous drugs as a carrier and none of the dangerous drugs was for his own consumption.”

The applicant’s submissions

(Grounds 1 to 3)

18.Mr Donald, together with Ms Mohamed, on behalf of the applicant, argued that the judge wrongly took into consideration irrelevant, prejudicial and erroneous factors when assessing the applicant’s evidence. Firstly, in respect of the applicant’s meeting with his friend at McDonald’s, it was said that the judge failed to take into account that there were some McDonald’s restaurants in Hong Kong which still remained physically open, notwithstanding the Regulation in effect at the time, although their catering services were not in operation. The prosecution had not produced any evidence to rebut this fact. Secondly, there was no evidence to disbelieve the applicant’s evidence in respect of borrowing the vehicle from his friend, simply because of his Form 8 status and his unemployment at the time. Besides, there was also no evidence that the vehicle was, as the judge found, valuable. Thirdly, the judge erred in concluding that the applicant had adopted a casual attitude by keeping his compensation award with his friend, since it was not uncommon for people such as the applicant, who had no bank account, to use family or friends to keep their money for them. Fourthly, whether the applicant was from a wealthy family or not should not have been a factor in determining his credibility. Lastly, it was argued that it was unclear why the judge rejected the applicant’s evidence in respect of the divorce from his wife. The judge’s adverse opinion of the applicant’s credibility was clearly coloured by his From 8 status, which should not have had any bearing on his credibility.

(Ground 4)

19.Mr Donald argued that the judge’s conclusion that PW1 was credible and reliable was problematic. The discrepancies and omissions in his evidence in court when compared with his witness statement were matters that were material to his credibility and significant to the case. However, the court failed to address adequately the discrepancies and inconsistencies in PW1’s evidence, in particular as to: (i) the alleged behaviour of the applicant prior to being intercepted; (ii) the applicant’s reaction when being asked about the car; (iii) the way the applicant tried to dispose of the drugs in front of PW1; and (iv) his cooperation with the police.

(Ground 5)

20.Mr Donald submitted that the applicant’s possession of the dangerous drug for the purpose of trafficking was not the only reasonable inference to be drawn from the evidence. First, PW1’s attention was only drawn to the applicant because of the open car window, rather than any suspicious conduct that might have been connected with drug related activities. Secondly, the applicant’s financial situation was supported by documentary evidence. Thirdly, the dangerous drugs were openly placed in the seat well of the car and when he walked away from the car, the car window remained open, which were hardly the actions of someone dealing in dangerous drugs. Fourthly, there was no evidence suggesting sales and purchases of dangerous drugs. Fifthly, while the value of the dangerous drugs involved was HK$3,464 and the applicant was in possession of HK$1,142 in cash, there was no evidence to suggest that the cash was the proceeds of trafficking.

21.Although the amount of the applicant’s purported daily intake of “Ice” was slightly higher than the expert’s opinion of daily intake in HKSAR v Tam Yi Chun[17], there was nothing to challenge his testimony in court. The amount of “Ice” found could have been for his own consumption. Finally, the applicant’s two previous convictions for possession of dangerous drugs provided independent and contemporaneous support for the fact that he was a drug user; moreover, he had never been convicted of a trafficking related offence. Referring to HKSAR v Ho Ka Kei[18], Mr Donald accepted that while the present circumstances might lead to an inference of trafficking, it would be unsafe to conclude that it was the only inference to be drawn.

The respondent’s submissions

(Grounds 1 to 3)

22.In respect of the evidence of the applicant’s alleged meeting with his friend and the borrowing of a private car, Ms Leung, for the respondent, submitted that given the Covid pandemic in Hong Kong and the operation of the Regulation at the material time, it would not have been possible for the applicant to find his friend sitting at the relevant McDonald’s restaurant at 3 am in the morning. Further, since the applicant was unable to recall the name of the person who purportedly lent him his car, it was doubtful that a mere acquaintance would have lent such a valuable item to someone with whom he was evidently not particularly close. In disbelieving the applicant’s account of how he came into possession of the private car, the judge was relying on the inherent improbabilities of the applicant’s account, rather than the applicant’s Form 8 status.

23.In respect of the applicant’s account of his compensation award, Ms Leung noted that the applicant admitted in his testimony that he had had a bank account in 2013 but that his bank card was taken back from him before he reverted to his Form 8 status in 2016. Yet, the applicant did not seek to obtain another bank card after receiving the first advance payment of compensation in late 2016. The applicant’s testimony that he entrusted Singh with the compensation awarded to him, without any documentary proof of the deposit or the balance still held, was simply implausible. The judge was entitled to find that the applicant was not telling the truth in this regard.

24.In respect of the applicant’s relationship with his wife, Ms Leung argued such was the unreasonableness of his evidence that the judge had a sufficient basis for disbelieving the applicant.

(Ground 4)

25.Relying on the case of HKSAR v Egan[19], Ms Leung submitted that an appellate court should be slow to interfere with a judge’s finding as to a witness’ credibility and reliability, unless the finding was plainly wrong. She pointed out that the judge had had the opportunity of seeing and hearing PW1’s evidence and was entitled to find that none of the alleged omissions and discrepancies were material and to accept PW1’s evidence in full. Furthermore, all of the issues raised by the applicant in the present application had been canvassed at trial. The judge was fully aware of the applicant’s criticisms of PW1’s evidence.

(Ground 5)

26.It was submitted that the substitution of a conviction for simple possession for trafficking in a dangerous drug by the Court in Ho Ka Kei arose out of the facts of that particular case. Further, the judge was entitled to draw an irresistible inference that the applicant was in possession of the “Ice” for the purpose of trafficking from the following circumstances: the “Ice” was packed in a manner that would have made its resale easier and more convenient; it was wholly unnecessary for him to carry just one of the bags of “Ice” with him when alighting for the car, whilst leaving the two other bags inside the car; the total quantity of “Ice” exceeded the range for self-consumption; the applicant had possession of two mobile telephones; and there was no satisfactory explanation for why he should be driving the vehicle. Accordingly, she submitted that the circumstances leading to an inference of guilt were irresistible and the conviction was neither unsafe nor unsatisfactory.

Discussion

27.This is a factual appeal, in which the onus on the applicant is to show that the judge’s reasoning was plainly wrong, thus rendering the verdict unsafe and unsatisfactory. The problem confronting Mr Donald in this appeal is that the applicant’s account for his possession of the drugs in question was objectively bizarre. The defence at trial were asking the judge to accept as reasonably possible an explanation that the applicant had met someone, whom he could not name or identify, at a McDonald’s restaurant at about 3 am on 22 March 2021, when it would have been closed as a consequence of the operation of the law during the height of the Covid pandemic, and that that person would have agreed to lend the applicant his car so that he could drive and collect some drugs from Mongkok.

28.Mr Donald suggested that while McDonald’s restaurants would have ceased their dining facilities pursuant to the Regulation, their common eating areas could have remained open to the general public, thus allowing the applicant access to meet an acquaintance, whose name he could not remember, and borrow his car. I have great difficulty in accepting this as a reasonable possibility, when the whole purpose of the Regulation and the thrust of public health policy at the time (which everyone in Hong Kong knew about and lived through), was to limit people’s contact and association with each other, particularly in restaurants and public places in order to prevent the Covid virus from spreading. I do not accept that it was the prosecution’s duty to prove that the McDonald’s restaurant in question was in fact closed to the public as a result of the Regulation: rather, it was for the applicant to show that the restaurant in question remained open to the public despite the operation of law by virtue of the Regulation and the well-known public health concerns prevailing at the time.

29.As for the notion of the applicant, who was unemployed at the time, borrowing a car from someone he was evidently not so familiar with as to be able to even recall his name, the evidence was on the face of it extremely unlikely, if not rather preposterous.

30.Criticism has been made of the judge’s suggestion that there was nothing to keep the applicant in Hong Kong, despite his Form 8 status, when he was divorced, unemployed and living in humble circumstances, yet was apparently from a well-off family in Pakistan. However, the point gains some traction from the fact that he had actually returned to Pakistan in late 2014, despite whatever had prompted him to come to Hong Kong in 2009 and obtain his Form 8 status, and then returned to Hong Kong in February 2016. In any event, I do not believe an appellate court would regard this complaint, such as it is, as very significant.

31.I would agree that there was some evidence, which tended to support the fact that the applicant was himself a drug user. However, as Mr Donald, rightly accepted, that does not mean that a drug user cannot also be a drug trafficker. In fact, there are obvious commercial reasons why he may be, especially when he is unemployed.

32.Without addressing each and every matter advanced, there will always be arguments that the judge should or should not have relied on a particular factor, or given it more or less weight. However, in a case that relies essentially on facts and inferences, the burden on an applicant is to show that no reasonable tribunal could have come to the particular view of the facts it did. I do not think that the essentials of the judge’s findings can realistically be impugned in this case, so as to afford a reasonably arguable appeal.

33.It was for these reasons that I refused the application for leave to appeal against conviction. The applicant is nevertheless informed that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court of Appeal has the power to order the loss of any time which he has served pending the hearing of his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

Ms Peggy Leung SPP, of the Department of Justice, for the Respondent

Mr Richard D Donald, instructed by Boase Cohen & Collins, assigned by the Director of Legal Aid, and Ms Nisha Mohamed, instructed by Boase Cohen & Collins, on a pro bono basis, for the Applicant